Burke v. Burke
Decision Date | 28 June 1963 |
Docket Number | No. 19669,No. 2,19669,2 |
Citation | 191 N.E.2d 530,135 Ind.App. 235 |
Parties | Raymond BURKE, Appellant, v. Jack D. BURKE, Appellee |
Court | Indiana Appellate Court |
Charles C. Campbell, Rochester, Kizer & Neu, Plymouth, for appellant.
Hillis & Hillis, John T. Hillis, Robert C. Hillis, Tom F. Hirschauer, Logansport, for appellee.
This appeal is brought by appellant (plaintiff below) questioning the trial court's action in directing a verdict for the appellee (defendant below) and the court's judgment duly entered in accordance with said verdict.
The appellant was the father of a fifteen (15) year old boy who was killed while riding in a car driven by the appellee as a result of a head-on collision with a truck being driven by a third party. This action was brought under the guest statute and the appellant alleged the appellee was liable for wilful or wanton misconduct.
By the provisions of Acts of 1937, ch. 259, § 1, p. 1229, being § 47-1021, Burns' 1952 Replacement, it is provided that the owner or operator of a motor vehicle shall not be liable for loss or damage arising from injuries to, or death of, a guest unless such injuries or death are caused by the wanton or wilful misconduct of such operator, owner or person responsible for the operation of such motor vehicle.
The motion for directed verdict was sustained at the close of the plaintiff's evidence. Appellant asserts that there was substantial evidence or reasonable inferences that could be drawn terefrom supporting each material allegation essential to recovery and therefore it was error for the trial court to sustain the motion for a directed verdict citing Miller etc. v. Smith (1955), 125 Ind.App. 293, 124 N.E.2d 874; Bradford v. Chism (1963), Ind.App., 186 N.E.2d 432, 1 Ind.Dec. 21. This is a correct statement of the rule and is applicable if the scope and nature of the evidence warrants the conclusion.
Hence, our duty is to review the evidence most favorable to the appellant to determine whether there was substantial evidence of probative value or reasonable inferences to be drawn therefrom to sustain the appellant's cause of action. In doing so we must draw against the party requesting a peremptory instruction, all inferences which the jury might reasonably draw. Johnson v. Estate of Gaugh et al. (1955), 125 Ind.App. 510, 124 N.E.2d 704; Bradford v. Chism, supra.
In viewing the evidence most favorable to the appellant, the record indicates that the only evidence presented by the plaintiff of the defendant's conduct at the time of the collision was given by Raleigh Sellers, the driver of the truck involved.
The pertinent portions of Sellers' testimony are as follows:
(Transcript p. 94, lines 10-11)
(Transcript p. 95, lines 20-27)
' (Transcript p. 96, lines 1-19)
Another witness was brought in out of order and the rest of Sellers' estimony was given the next day:
(Transcript p. 101, lines 20-27, p. 102 lines 1-27 and p. 103, lines 1-5) (our emphasis)
The only other evidence on the subject was given by a secretary of one of appellant's attorneys who stated that the appellee said
1 (Transcript p. 71, lines 24-26)
and
(Transcript p. 73, lines 14-17)
Appellant's theory is that the defendant drove his car on the left side of the highway for some 750 feet at a speed of sixty or seventy miles per hour. Whether or not this is wanton or wilful misconduct we do not have to decide.
Appellant attempts to show that since it took Sellers the same time to go 20 rods as it took the appellee to go 30-35 rods and Sellers was traveling at 40-45 mph, the defendant must have been traveling at 60-70 mph. This is an ingenious method in which to establish the speed would it not be for the nature of the vagueness of distances estimated by the witness.
Not only does the witness contradict himself as to the total distance between the two automobiles when he first saw the defendant's car, but his testimony is replete with continual protests against having to make estimates of the various distances when he wasn't sure of such distances. Appellant would then have us take these extremely indefinite guesses and apply them to a precise mathematical formula to determine the appellee's speed at the time of the collision.
The material allegations of appellant's complaint essential to recovery must be supported by 'substantial' evidence as differentiated from a mere 'scintilla'. Sylvester v. State (1933), 205 Ind. 628, 187 N.E. 669; McCague v. New York C. & St. L. R. Co. (1947), 225 Ind. 83, 71 N.E.2d 569, 73 N.E.2d 48.
Substantial evidence has been defined to mean 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion'. McCague v. New York C. & St. L. R. Co., supra; Marzacco v. Lowe (1945), 58 F.Supp. 900 (D.C.N.J.)
While great restraint is placed upon the trial courts in denying submission of a cause brought in good faith involving far reaching and serious consequences to the complaining party, Garr v. Blissmer et al. (1961), 132 Ind.App. 635, 177 N.E.2d 913; Cochran v. Town of Shirley (1909), 43 Ind.App. 453, 87 N.E. 993, and, '[t]he law very zealously protects one against whom a motion for a directed verdict is addressed,' Estes v. Anderson Oil Co. (1931), 93 Ind.App. 365, 176 N.E. 560. Nevertheless such rules should never be utilized to allow a cause to go to a jury where a determination of rights of the parties involves mere conjecture or speculation and upon which such determination would be premised. Johnson v. Brady (1915), 60 Ind.App. 556, 109 N.E. 230; Pittsburgh, etc., R. Co. v. Vance (1915), 58 Ind.App. 1, 108 N.E. 158.
There is also some authority to the effect that a directed verdict for the defendant is proper when the plaintiff's only evidence on a material allegation essential to recovery is a statement of one of its witnesses that is in conflict with other statements of that same witness made in the trial of the cause. Lemans v. Wiley (1884), 92 Ind. 436.
Appellant argues that since the witness first saw the appellee's car as the 'left wheels were...
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